Aug
21

St. Lucia Ratifies ICC Treaty

This week the Caribbean Island nation of St. Lucia became the 113th nation to ratify the Treaty of Rome and become a member of International Criminal Court (ICC).  The ICC treaty became effective in 2002 when the 60th nation ratified the treaty.   In 1998, the treaty was signed by 120 countries and developed the framework for a court.

The court is intended to prosecute war crimes, crimes against humanity and acts of genocide.  The court has jurisdiction in the nations that have ratified the treaty and that jurisdiction extends to acts from the effective date, July 1, 20o2.

The court was in part a response to international tribunals which had been created to prosecute crimes in the former Yugoslavia, Rwanda and Sierra Leone.  Instead of creating a new tribunal for each set of atrocities, the idea was to create a permanent court to hear all such cases.

In order to have jurisdiction, the crimes must occur in one of the states which has ratified the treaty, or the case must be referred by the U.N. Security Council.  The ICC has indicted persons from Uganda, Democratic Republic of Congo, Central African Republic, and Darfur, Sudan.  The court has also approved an investigation into the post-election violence in Kenya, but no indictments have been made public.

The first ICC case to go to trial, Thomas Lubanga Dyilo of the Democratic Republic of Congo has been suspended because of the prosecution’s failure to comply with discovery orders by the court.  This case may provide a test of the lasting power of the court and its ability to function.  The court has ordered Lubanga released, but that order has been stayed pending appeal.

The court also has outstanding arrest warrants for the President of Sudan, Omar Al-Bashir.  The court has indicted Bashir for genocide, and war crimes in Sudan, but his government and many other countries have declined to arrest Bashir and present him to the court.

Another case that came to the court from Sudan, Bahar Idriss Abu Garda, won dismissal of the charges against him at the confirmation of charges hearing. Two more accused from Sudan have now voluntarily appeared before the ICC and are contesting the confirmation of charges.

A major criticism of the court so far has been that all the cases have come from Africa, in fact adjoining countries in Africa.  The ICC Prosecutor, Luis Moreno-Ocampo has said that more cases will be forthcoming and has said investigations are ongoing in Georgia, Guinea, Afghanistan, and Colombia.

The court cannot prosecute cases where a national authority has the jurisdiction and ability to prosecute.  Its mandate is to prosecute only those crimes that will otherwise go unpunished and those that are severe enough to qualify as war crimes or crimes against humanity.  The ICC sits in The Hague, Netherlands.

Aug
18

ICTY President Argues for Adding Reparations to ICTY Process.

The President of the International Criminal Tribunal for Yugoslavia, (ICTY) Patrick Robinson, delivered a statement arguing that the ICTY should add a process like the International Criminal Court has for victims to seek reparations.  Judge Robinson’s address to the U.N. Security Council was to update the Security Council on the court’s completion strategy.

Judge Robinson argues that a process is necessary for the long term stability of the former Yugoslavia:

In order to contribute to a lasting peace in the former Yugoslavia, justice must not only be retributive—it must also be restorative. The International Criminal Court and the 111 States that have ratified the Rome Statute accept the importance of compensation to victims of war crimes, crimes against humanity, and genocide—and the United Nations must do the same. I therefore call upon you to take action and establish, as the ICC has, without further delay, a trust fund for victims of crimes falling within the Tribunal’s jurisdiction, to complement the Tribunal’s criminal trials, by providing victims with the necessary resources to rebuild their lives.

Judge Robinson’s statement is available here.

Aug
01

Appeals Judge Recuses Herself from Lubanga Appeal

International Criminal Court Appeals Judge Akua Kuenyehia has removed herself from hearing the appeal of the trial court decision suspending the case against Thomas Lubanga of the Democratic Republic of the Congo.  Judge Kuenyehia sat on the pre-trial chamber that approved the warrant and initial indictment against Lubanga.  Another judge who has not been involved in the pre-trial or trial chamber decisions has been assigned to her seat on the Appeals Chamber.  The process is explained in the Open Society blog on the Lubange trial here.

Thomas Lubanga Dyilo is the first person to face trial at the International Criminal Court (ICC) in The Hague, The Netherlands for war crimes.  He is also the first person ever to have been charged with recruiting and using child soldiers as a war crime. Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of Congo.  He was brought before the ICC in 2007, his trial started in January 2009, the defense began its case in January 2010.

Last month, the trial chamber suspended the trial based on allegations that a prosecution investigator, identified as “Intermediary 143″  bought or otherwise influenced the testimony of defense witnesses.  The trial chamber ordered the prosecutor to identify “Intermediary 143″ and when the prosecution did not comply ordered the trial suspended and Lubanga released finding that the refusal to disclose the identity of the intermediary to the defense had denied Lubanga a fair trial on the charges.  The court in its order said:

Whilst these circumstances endure, the fair trial of the accused is no longer possible, and
justice cannot be done, not least because the judges will have lost control of a
significant aspect of the trial proceedings as provided under the Rome Statute framework.

The Open Society Institute detailed the court’s decision here.

The prosecution has appealed the order suspending the case and the order directing Lubanga’s release on the grounds that he might flee and not return to the court if released from custody.

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